Judgment:
B. Panigrahi, J.
1. Plaintiff in Title Suit No. 29 of 1979 of the Court of Subordinate Judge, Sambalpur has filed this appeal against the reversing judgment and decree passed by the appellate 'Court by which his suit for declaration of title, confirmation and/or recovery of possession and for permanent injunction was dismissed.
2. It is alleged in the plaint that the suit property once belonged to Bhimsen Panigrahi, who sold the same to one Kisanlal Sharma for consideration. Thereafter the vendee Kishanlal Sharma was in possession of the suit land in his own right and got it mutated in his name. Kishanlal Sharma left Rairakhol in the year 1954 and before his departure he orally transferred the suit land to the plaintiff for which he claimed to have been in possession of the suit land since 1954 onwards and had mutated the land in his favour. It has been further alleged that the plaintiff constructed a house over a portion of the suit land and has been living therein. The defendants having no matter of right, title, interest and possession of the suit land had created disturbance in the peaceful possession of the plaintiff, therefore, he filed the suit for the aforesaid relief.
3. The respondent-defendants have, inter alia, alleged that the defendants have never sold the land to Kishanlal Sharma nor the said Kishanlal Sharma had orally sold the suit land to the plaintiff. It has been alleged in the written statement that Bhimsen Panigrahi agreed to sell the entire extent of the suit land measuring A.3.40 decimals to Kishanlal Sharma and Monoharlal Sharma, but the transaction could not be materialised since the vendee could not arrange the consideration amount. Thus the original owner Bhimsen Panigrahi continued to possess the land till his death and was paying rent in lieu of his occupation. But the plaintiff, however, made a request to Bhimsen Panigrahi to permit him to construct a house over A.0.10 decimals of land some time in 1970 for a consideration of Rs. 300/- and as such the defendant-respondents permitted him to reside therein. Thus the defendant-respondents prayed for dismissal of the suit.
4. The trial Court on the basis of the pleadings and the evidence adduced by the parties was, however, inclined to pass a decree in favour of the plaintiff. Thus the defendants 2 to 7, 10 and 11 thereafter filed an appeal being T.A. No. 31/3 of 1983/84 before the Addl. District Judge, Sambalpur. The learned appellate Court after an elaborate resume of the evidence placed before it, however, differed from the findings of the trial Court and dismissed the plaintiff's suit, but confirmed the plaintiff's title over A. 10 decimals of land. Thus against the judgment passed by the lower appellate Court the plaintiff filed the present appeal whereas defendants 2 to 7 also filed a cross-appeal.
5. Mr. Mukherjee, learned Senior counsel appearing for the appellant strongly contended that although the property once belonged to Bhimsen Panigrahi, but he had transferred the same to Kishanlal Sharma. The respondents have also admitted that there was a proposal for selling the lands to Kishanlal and Manoharlal. Therefore, the title in respect of Kishanlal and Manoharlal over A.3.40 decimals of land cannot be disputed by the defendant respondents. Immediately after the purchase by Kishanlal and Manoharlal they applied for mutation of the land in or about 1949 and accordingly the prayer for mutation was allowed. Kishanlal orally sold the property to the plaintiff for Rs. 90/- in the year, 1954 and thereupon constructed a house in which he is presently residing. It has been contended that the learned lower appellate Court did not at all consider the Khatian, Ext. 10 relating to Khata No. 3258 standing in the name of Kishanlal for A.3.40 decimals of land in 1949. In the mutation proceeding filed by the plaintiff, the respondents admitted that the suit land was sold to Kishanlal in Mutation Case No. 274/72 vide Ext. 16. In Ext. F, the decree in Title Suit No. 141 of 1949 between Raja of Rairakhol and Bhimsen Panigrahi it has been held that Bhimsen sold the land to Kishanlal. D.W. 1 in his evidence admitted that his father had agreed to sell the land to Kishanlal and Manoharlal in 1949. It is also established that pursuant to purchase Kishanlal and Manoharlal paid the rent to the Government. Therefore, all these evidence would firmly establish that the lands have been sold by Bhimsen to Kishanlal. During the pendency of the appeal an extent of A.1.66 decimals of land has been recorded in the name of the appellant as a raiyat. The. copy of the written statement, filed in Title Suit No. 141 of 1949 by Bhimsen although not admitted in evidence would clearly reveal that the land was sold to Manoharlal and Kishanlal.
6. The appellant incurred a loan by mortgaging the suit land for Rs. 3100/- and theSecretary of the Co-operative Society wasexamined as P.W. 3. The appellate Court haswrongly held that the evidence of the Secretary of Co-operative Society does not weighmuch while deciding the title over the suitland.
7. Mr. Dutta, learned counsel appearing for the defendant respondents has critically placed his case by stating that oral sale as claimed by the plaintiff could not be proved in the instant case. The plaintiff in the Mutation Case No. 274 of 1972 claimed title by way of adverse possession whereas in a subsequent Mutation Case No. 104 of 1974 he changed his version and has claimed interest by remaining in permissive possession. Since he has taken two contradictory pleas one is inconsistent with the other, therefore, he is not sure regarding the source of his acquisition of the suit land. The erstwhile ruler of Rairakhol filed a suit being T.S. No. 141 of 1949 for ejectment of the defendants' ancestor Bhimsen Panigrahi and the said suit was dismissed. Thereafter the ex-ruler preferred an appeal being T.S. No. 45 of 1951 before the appellate Court. There was a compromise petition vide Ext. G and in the said appeal the entire suit land was given to Bhimsen Panigrahi vide Exts. H and J. It is claimed by the respondents that had Kishanlal and Manoharlal being the owners of the property, they would have also signed in the compromise petition. But they neither signed the compromise petition nor filed any appeal against such order. Therefore, it is binding and conclusive on the plaintiff-appellant. It is strongly contended by Mr. Dutta that the appellant has wrongly placed reliance on the certified copy of the written statement purported to have been filed by Bhimsen Panigrahi in T.S. No. 141 of 1949 particularly when it T.A. No. 45 of 1951 which is a continuation of the suit where it was agreed that the entire land was given to Bhimsen Panigrahi.
8. Upon hearing learned counsel appearing for both parties and on perusal of theevidence on record it is to be first decidedwhether either party, namely, BhimsenPanigrahi or Bauribandhu Mohanty doeshave any interest over the suit land. It isnonetheless true that Bhimsen Panigrahiwas the original owner of the suit land andthe plaintiff has claimed that it was transferred in favour of Kishanlal and ManoharlalSharma some time in 1949 and thereafter itwas mutated in their names. After the landsold to Manoharlal and Kisanlal Sharma, thedefendants' family had divested of theirrights over the suit land.
9. The only substantial question of law that has been formulated in this Court is whether the lower appellate Court misinter-preted and misconstrued the documentary evidence adduced by the parties as a reason whereof it reyersed the judgment of the trial Court. Much reliance has been placed on a receipt purported to have been granted by the Secretary Banpur Co-operative Society on 19-4-81 by which the suit lands alleged to have been mortgaged in favour of the society for digging of well. The mere fact that the plaintiff caused some loan by mortgaging the property no legal inference can be drawn that he is the owner of the same unless he shows by other unequivocal evidence to have purchased the land from Manoharlal Sharma and Kishanlal Sharma. Ex. 3 series are the rent receipts which disclosed that the rent has been paid on behalf of Kishanlal and Manoharlal.
10. Mr. Mukherjee, learned counsel appearing for the appellant has argued with vehemence that the rent paid by the appellant would unmistakably reveal that his client was in possession of the same. While repelling the said case reliance was placed by the learned counsel in a judgment reported in (1982) 53 Cut LT 214 : (AIR 1982 Orissa 73) in the case of Hadibandhu Ho v. Luchia Ho wherein it has been held (at pp. 74 and 75 of AIR) :--
'If rent is paid by a trespasser ordinarily the receipt would be granted in the name of the person in whose name the property stands recorded. Until the name of the recorded owner is changed by mutation or otherwise, the receipt, perforce, would be granted in his name. Trespasser to protect his interest, i.e. to avoid sale of the property on account of non-payment of rent, may be obliged to pay the rent and he cannot obtain a receipt in his name so long as his name has not been mutated in place of the owner and such mutation may be possible only after his adverse possession matures into title by lapse of the period prescribed. In such a situation, it would be incorrect to state that the trespasser by paying rent and obtaining receipt in the name of the recorded owner (Revenue authorities can grant receipt only in the name of the recorded owner) acknowledged the title of the recorded owner. The receipt would be granted in the name of the recorded owner despite his hostile animus.'
11. No inference can legally be deducedonly by looking at the payment receipt thatthe payer is the owner of the property. Eachcase depends upon its own facts. A copy ofthe petition filed before the Mutation Officerhas been marked as Ext. 5. In Ext. 5 it was,however, claimed by the appellant that hewas in permissive possession of the suit landfrom the true owner meaning therebyKishanlal Sharma and Manoharlal Sharma.Once the plea of permissive possession wastaken by the appellant, there was no occasion for him again to turn round and contend that his possession was adverse. Oneplea is quite contradictory and inconsistentwith the other. In the order, Ext. 9 in Mutation Case No. 104 of 1974 it was held thatthe land measuring A.3. 40 decimals out ofplot Nos. 93/8 and 97/19 under holding No.358 of 1945-49 settlement of village Raipurstands recorded in the name of KishanlalSharma vide Mutation Case No. 19 of 1949.Against the order of the Mutation Officer anappeal was preferred before the Member,Board of Revenue and it has been held that,once the appellant's prayer for mutation wasrejected earlier, there was no occasion forthe Mutation Officer to subsequently changehis view and allow the appellant's prayer formutation. Accordingly fraud having beencommitted while securing the mutation order, therefore, the land should continue inthe name of old tenant Kishanlal Sharma.
12. The plaintiff has advanced a plea oforal sale. It is claimed that he had purchasedthe land from Kishanlal Sharma andManoharlal Sharma. But there is no evidence worthwhile to prove that there was any consideration paid to the vendors nor is there any credible evidence to establish that possession was delivered pursuant to such oral sale. Therefore, the appellate Court has rightly held that the appellant did not prove to have acquired title on the basis of such oral sale. It has been already discussed that it is impermissible for the appellant to take such inconsistent and contradictory plea, such as, the permissive possession at one stage and adverse possession at other stage. Thus he is not sure as to on which basis he started occupying the land.
13. Now it is to be found as to whether Bhimsen Panigrahi does possess any title over the, suit land. It is true that Bhimsen Panigrahi was the owner of the property. But his consistent stand was that he sold such land to Kishanlal sometime in 1949. It has also been admitted by him in Mutation Case No. 274 of 1972 that he sold the property to Kishanlal Sharma. After selling the property in favour of Kishanlal how, could he claim ownership over the same, Admission is a good piece of evidence unless it is explained. The defendant, however, failed to prove that suqh admission is untrue. Rather it stood confirmed the fact of sale from the subsequent conduct, such as in the mutation proceeding. Kishanlal Sharma and his other co-owner had taken steps to get their names mutated and accordingly they have been treated as owners over A 7.40 decimals from Khata No. 358 of village Rampur, and subsequently, A 3.40 decimals out of plot No. 93/8 and 97/19 in the name of Kishanlal Sharma vide Misc. Case No. 98 of 2000.
14. Therefore, from the above facts andcircumstances there can be no doubt as regards ownership of the land that the samebelonged to Kishanlal and Manoharlal. Reliance has been placed on a suit filed by theZamindar of Ralrakhol in T.S. No. 141 of1949 against Bhimsen Panigrahi andManoharlal Sharma. In the said suit it hasbeen alleged that the suit plot measuringA.7.42 decimals was sold to Manoharlal, butdefendant No. 2, namely, Manoharlal wasset ex parte. The aforesaid suit was dismissed. The ex-ruler filed ah appeal and inthe appellate Court, a compromise petitionwas filed vide Ext. G where the Zamindardid not claim any interest over the suit land.The compromise was recorded vide Ext. Gand the suit was disposed of as per the compromise vide Ext. H. The compromise shall have least effect while determining the ownership of the land inasmuch as by the time the compromise was entered into between the ex-ruler and Bhimsen Panigrahi, the latter had transferred his land in 1949 to Klshanlal Sharma and Manoharlal Sharma. The suit was dismissed against Manoharlal Sharma. Kishanlal Sharma was not a party to the compromise, therefore, the terms of the compromise was not binding on him.
15. From the discussions made by the appellate Court it has transpired that the appellant has constructed a house on A. 10 decimals of land. Manoharlal and Kishanlal left Rairakhol some time in 1954. Presumably after they left the village both parties came forward with the plea of ownership. The plaintiff constructed a house over AO. 10 decimals of land and tried to usurp other portion without any valid document. So also. Bhimsen Panigrahi after having sold the land to Kishanlal Sharma and Manoharlal Sharma tried to assert his right over the land. Thus the litigation had started between the parties. From the fact situation it has transpired that neither of them had any right over the same and the property belonged to Manoharlal Sharma and Kishanlal Sharma, who have left the village since 1953-54 and there has been no trace of them since then. In this background it has to be now decided as to whom the property shall devolve.
16. While disposing of the said issue, I rely on a judgment of the Supreme Court reported in AIR 2000 SC 1141 in the case of Sheo Nand v. Deputy Director of Consolidation, Allahabad. Exactly similar situation arose in the aforesaid case. In absence of any heir or devisees the property shall vest on the State Government. Therefore, on the basis of doctrine of escheat it can safely be concluded that the suit land will vest in the State.
17. Be it noted that since the plaintiff has constructed a house over AO. 10 decimals of land such land shall be excluded, but the revenue authorities shall take hold of the other portions of the suit land.
18. With the above observation, the appeal as well as the cross-appeal are dismissed. Send a copy of this judgment to the Collector concerned.